By Spencer Evans.
“To pursue this sets a precedent for activists and people wanting to know what’s going on with our money in our communities”: the words of Hans McCarthy, Indigenous activist and member of Frog Lake First Nation, following the Order of the Federal Court made on November 20, 2025.
Federal legislation requires transparency when it comes to the management of First Nations’ finances, and this decision should serve as a wakeup call for a federal government that has failed to uphold the law for nearly a decade.
Mr. Justice Ahmed allowed our application for judicial review, heard in September 2025, of Indigenous Services Canada’s (“ISC”) refusal to provide copies of Frog Lake First Nation Band Council Resolutions (“BCRs”) authorizing the use of Band trust funds held by the federal government, which had been requested by Mr. McCarthy under the Access to Information Act (“ATIA”). The Court ordered ISC to produce the requested records within 30 days of the Order, subject to limited redactions of personal information.
Mr. McCarthy had been pursuing transparency regarding the Band’s finances as far back as 2022, when he requested a copy of the Band’s Schedule of Remuneration and Expenses for the fiscal years of 2019, 2020, and 2021, pursuant to s. 7(1) of the First Nations Financial Transparency Act (“FNFTA”). As Justice Ahmed found, Mr. McCarthy did not receive a response, and these documents had not been published online as required under ss. 8 and 9 of the FNFTA.
In support of our application, we filed a report prepared by forensic accountant Dave Oswald finding that the Band’s trust fund had decreased from approximately $102 million in 2013 to $3 million in 2021. Mr. Oswald concluded, based on publicly available information, that this depletion had not been adequately explained and that the amounts purportedly spent on various community projects did not appear to have been spent in a value for money way.
ISC cited ss. 19(1) and 20(1)(b) of the ATIA to justify its refusal to provide the requested records. These provisions require government institutions to not disclose personal information and third party financial information, respectively. Mr. McCarthy filed a complaint with the Office of the Information Commissioner with respect to this refusal, but the Commissioner determined that the exemptions were properly applied and that the complaint was not well founded – leaving the Court as his only recourse.
The Court found that, in assessing whether the s. 19 and 20 ATIA exemptions apply, other statutory provisions which allow or require disclosure may be considered. In this case that included sections of the FNFTA, Indian Bands Revenue Moneys Regulations (“IBRMR”), and the Manual for the Administration of Band Moneys.
Personal information
The Court agreed with ISC that the records contained personal information, including names, titles, signatures, and compensation of the Chief and Council, government officers and employees, employees of private companies, and members of the Nation.
But the Court accepted our argument that some of this information is excluded from the definition of personal information under s. 3(j) of the Privacy Act, in particular, names and titles of Chief and Council and staff of the Nation, as they were held to form part of a “government institution” with respect to Mr. McCarthy. Justice Ahmed clarified that this does not draw an equivalence between staff, Chief or Council of the Nation, and government officers and employees in every circumstance. The fact that Mr. McCarthy is a Band member was decisive on this point, in light of the Federal Court of Appeal’s decision in Canada (Indian Affairs and Northern Development) v Sawridge Band, 2009 FCA 245. So names and titles were not personal information, but signatures and compensation were.
However, even if there was personal information it did not mean it was necessarily exempt from disclosure. Information about the compensation of Chief and Council engaged the discretionary powers of ISC under s. 19(2) of the ATIA, specifically because information may be disclosed under s. 19(2)(b) if it is “publicly available”. The requirements under s. 7(1) of the FNFTA meant that the compensation of Chief and Council was publicly available, and Mr. McCarthy’s status as a member was relevant to that determination, but Justice Ahmed went further to say that Parliament had intended this information to be publicly available in a general sense, as shown by the requirement to publish the Schedule of Remuneration and Expenses on the Nation and ISC’s websites. This information should be available not only to Mr. McCarthy but to any person online. ISC’s failure to consider s. 19(2)(b) of the ATIA was therefore a reviewable error.
The Court found that ISC had similarly erred with respect to s. 19(2)(c) of the ATIA, which allows for disclosure in accordance with s. 8 of the Privacy Act. While we had argued that the proposed use of the information does not need to be identical with the purpose for which it was obtained as long as there was “sufficient direct connection”, the Court found that was not the case here. It was also held that the public interest in disclosing this personal information did not outweigh the invasion of privacy that could result from the disclosure, as required by the exemption found in s. 8(2)(m)(i) of the Privacy Act.
The Court also rejected our submission on s. 8(2)(k) of the Privacy Act, holding that this provision was intended to apply to aboriginal groups rather than individuals. It is a collective right of access. This finding provides useful guidance for future access requests.
- 8(2)(b) of the Privacy Act was held to apply, though. This section says that personal information may be disclosed “for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure.” ISC was therefore required to consider whether to exercise their discretion to disclose information regarding Chief and Council’s compensation, and the failure to do so was a reviewable error.
Third party financial information
The Court agreed with ISC that the BCRs contained “financial information”.
However, the confidentiality of this financial information failed at the second and third steps of the test developed in Air Atonabee Ltd v. Canada (Minister of Transport), 27 CPR (3d), 1989 CanLII 10334 (FC). The BCRs did not “originate … in a reasonable expectation of confidence that [they would] not be disclosed”. As we argued in our submissions, almost all of the BCRs concluded with text that included the words “A copy of the audit will be posted in a conspicuous place on the reserve for examination by members of the band”. The Court agreed with us that this text reflected the financial reporting obligations set out in the FNFTA and IBRMR. This text demonstrated that information about the transfers from ISC was intended to be shared not just with members but with the general public.
The fiduciary relationship between the Nation and ISC did not alter these findings, per the decision in Timiskaming Indian Band v Canada, 1997 CanLII 5125 (FC). Notably, the Court held that “Even if the publication of the requested records was not mandated by statute, the fiduciary relationship between the Respondent and Frog Lake First Nation would still not warrant the exemption in paragraph 20(1)(b) of the ATIA”, pursuant to the Court’s decision in Chippewas of Nawash First Nation v Canada (Minister of Indian and Northern Affairs), [1996] FCJ No 991, 116 FTR 37 (FC). This was sufficient to determine that ISC was not authorized to withhold the requested records under s. 20(1)(b) of the ATIA.
The Order and its implications
The Court held that an order under s. 49 of the ATIA requiring disclosure of the BCRS was warranted in this case.
The personal information in the records was found to be largely severable under s. 25 of the ATIA, with the exception of signatures and compensation for Chief and Council, and the names, titles, and signatures of other individuals. The aggregate amounts of Chief and Council’s compensation were ordered to be disclosed, however the tables attached to each BCR did contain personal information, and the issue of disclosing these tables was remitted to ISC for redetermination.
The FNFTA, enacted by the Harper Conservatives in 2013, has been effectively ignored by the federal government since the Liberals came to power in 2015 – undermining transparency and the rule of law. But the FNFTA remains in force, and according to this decision, any third party information required to be disclosed under that (or other) legislation cannot be considered “confidential” so as to exempt it from disclosure under the ATIA.
S. 10 of the FNFTA does provide band members with the right to apply to a superior court for an order requiring band councils to carry out their duties under s. 7, but this is a costly and time consuming procedure, limiting access to justice. (And the federal government has refused to commence or maintain proceedings to enforce these provisions.) Now, there is clear authority that members of First Nations can request this information from ISC under the ATIA (which is a much less costly and more accessible process), and thanks to Mr. McCarthy these requests should no longer be denied.
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